RESTRICTED  
  
WT/DSB/M/444  
2 November  2020 
(20-7735) Page: 1/23 
Dispute Settlement Body  
28 August 2020   
 
  
MINUTES OF MEETING  
HELD IN THE CENTRE WILLIAM RAPPARD  
ON 28 AUGUST  2020 
Chairman : H.E.  Mr. Dacio Castillo  (Honduras ) 
Prior to the adoption of the Agenda1 
 
Table of Contents  
1   SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY 
THE DSB  ................................ ................................ ................................ ...........................  3 
A. United  States – Anti–dumping measures on certain hot -rolled steel products from 
Japan: Status report by the  United States  ................................ ................................ ............  3 
B. United  States – Section 110(5) of the US Copyright Act: Status report by the 
United  States  ................................ ................................ ................................ ...................  4 
C. European  Communities – Measures affecting the approval and marketing of biotech 
products: Status report by the European Union  ................................ ................................ ..... 4 
D. United  States – Anti–dumping and countervailing measures on large residential 
washers from Korea: Status report by the United States  ................................ .........................  6 
E. United  States – Certain methodologies and their application to anti –dumping 
proceedings involving China: Status report by the United States  ................................ ..............  6 
F. Indonesia – Impor tation of horticultural products, animals and animal products:  
Status report by Indonesia  ................................ ................................ ................................ . 7 
2   UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 
2000: IM PLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  ................  8 
A. Statement by the European Union  ................................ ................................ ...................  8 
3   EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES 
AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE 
RECOMMENDATIONS ADOPTED BY THE DSB  ................................ ................................ .... 9 
A. Statement by the United States  ................................ ................................ ......................  9 
4   EUROPEAN UNION – SAFEGUARD MEASURES ON CERTAIN STEEL PRODUCT S ...........  11 
A. Request for the establishment of a panel by Turkey  ................................ ..........................  11 
5   CHINA – DOMESTIC SUPPORT FOR AGRICULTURAL PRODUCERS  ..............................  12 
A. Recourse to Article 21.5 of the DSU by China: Request for the establishment of a panel  .........  12 
 
1 See pages 2 and 3.  WT/DSB/M/444  
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  6   THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  ................................ ................................ ................................ .................  13 
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the Recourse to Article  22.2 of the DSU (WT/DS371/32)  ................................ ..........  13 
B. Statement by the Philippines  ................................ ................................ .........................  13 
C. Statement by Thailand  ................................ ................................ ................................ .. 13 
7   PROPOSED NOMINATION FOR THE INDICATIVE LIST OF GOVERNMENTAL 
AND NON -GOVERNMENTAL PANELISTS  ................................ ................................ ..........  15 
8   APPELLATE BODY APPOINTMENTS: PROPOSAL BY AFGHANISTAN; ANGOLA; 
ARGE NTINA; AUSTRALIA; BANGLADESH; BENIN; PLURINATIONAL STATE OF 
BOLIVIA; BOTSWANA; BRAZIL; BURKINA FASO; BURUNDI; CABO VERDE; 
CAMEROON; CANADA; CENTRAL AFRICAN REPUBLIC; CHAD; CHILE; CHINA; 
COLOMBIA; CONGO; COSTA RICA; CÔTE D'IVOIRE; CUBA; DEMOCRATIC 
REPUBLIC OF CONGO; DJIBOUTI; DOMINICAN REPUBLIC; ECUADOR; EGYPT; EL 
SALVADOR; ESWATINI; THE EUROPEAN UNION; GABON; THE GAMBIA; GHANA; 
GUATEMALA; GUINEA; GUINEA -BISSAU; HONDURAS; HONG KONG, CHINA; 
ICELAND; INDIA; INDONESIA; ISRAEL; KAZAKHSTAN; KENYA; REPUBLIC OF 
KOREA; LESOTHO; LIECHTENSTEIN; MADAGASCAR; MALAWI; MALAYSIA; 
MALDIVES; MALI; MAURITANIA; MAURITIUS; MEXICO; REPUBLIC OF MOLDOVA; 
MOROCCO; MOZAMBIQUE; NAMIBIA; NEPAL; NEW ZEALAND; NICARAGUA; 
NIGER; NIGERIA; NORTH MACEDONIA; NORWAY; PAKISTAN; PANAMA; 
PARAGUAY; PERU; QATAR; RUSSIAN FEDERATION; RWANDA; SENEGAL; 
SEYCHELLES; SIERRA LEONE; SINGAPORE; SOUTH AFRICA; SWITZERLAND; THE 
SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU; 
TANZANIA; THAILAND; TOGO; TUNISIA; TURKEY; UGANDA; UKRAINE; UNITED 
KINGDOM ; URUGUAY; THE BOLIVARIAN REPUBLIC OF VENEZUELA; VIET NAM; 
ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.18)  ................................ ....................  16 
9   STATEMENT BY INDIA REGARDING THE COMPOSITION OF PANELS B Y THE 
DIRECTOR -GENERAL IN ACCORDANCE WITH ARTICLE 8.7 OF THE DSU IN THE 
FOLLOWING DISPUTES: DS582 AND DS588  ................................ ................................ ... 21 
10   STATEMENT BY THE RUSSIAN FEDERATION REGARDING ITS  GENERAL 
CONCERNS ABOUT THE EU DECISION TO APPEAL THE PANEL REPORT IN DS494  ..........  23 
Prior to the adoption of the Agenda : (i) the Chairman  welcomed the delegations participating 
physically  as well as those delegations who were listening –in remotely . He recalled that, as had been 
done at the 2 9 June and 2 9 July 2020 DSB meeting s, he would not be offering the floor to 
delegations participating remotely ; (ii) the item concerning the adoption of the Panel Report in the 
dispute on : "European Union – Cost Adjustment Methodologies and Certain Anti –Dumping Measures 
on Imports from Russia (Second Complaint)" (DS494) was removed from the proposed Agenda 
following the European Union's decision to appeal the Panel Report ; (iii) the representative of India 
said that India wishe d to make a statement regarding panel composition in the disputes : "India – 
Tariffs on ICT Goods (EU)" (DS582) and "India – Tariffs o n ICT Goods (Chinese Taipei)" (DS588) 
under "Other Business" . He said that p rior to the present meeting,  India had provided an advance 
notice of its intention of raising this item under "Other Business"  to the Chairman and the Secretariat, 
as well as to th e European Union and Chinese Taipei, the Members directly concerned, for the 
purposes of Rule 6 of the Rules of Procedure for GC/DSB Meetings . India could not have placed this 
matter on the Agenda of the present meeting under Rule 3  of the Rules of Procedure for GC/DSB 
Meetings because developments regard ing these disputes had taken place after the circulation of 
the Agenda  of the present meeting . This was a matter of urgency for India, and it was India's  only 
opportunity  to inform the Membership of such developments at this stage . India further wishe d to 
note that th is matter was not intended to lead to a substantive discussion . Rather,  it was meant to  
register India's  views and the DSB would  take note  of the statement for future discussions . Moreover, 
India was not seeking a decision on th is matter  but only wished to have the right to present its views  
on this matter ; and (iv) the representative of the Russian Federation  said that following the European 
Union 's decision to  appeal of the Panel Report in the dispute : " EU – Cost Adjustment Methodologies 
II (Russia)" (DS494), her country  wished to make a statement regarding  its general concern raised 
by the EU's  appeal . Russia could not have requested that this item  be placed on the Agenda of the 
present meeting because it had only been made aware of the EU's decision to  appeal the Panel WT/DSB/M/444  
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  Report this very morning . She said that Russia's statement w ould not  be substantive  and that the 
objective would be to present  Russia's  concerns regarding  future appeals and the current state of 
the Appellate Body . The representative of the European Union  said that the EU underst ood that 
Russia w ished to make a statement under "Other Bus iness" and not under the Agenda item which 
had just been removed . The representative of Russia  confirmed that her country intended to make 
a statement under " Other Business ". 
The DSB took note  of the statements and adopted  the Agenda, as amended.  
 
1  SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB  
A. United States – Anti–dumping measures on certain hot -rolled steel products from Japan : Status 
report by the United States (WT/DS184/15/Add.20 7) 
 
B. United States – Section 110(5) of the U S Copyright Act : Status report by the United States 
(WT/DS160/24/A dd.182) 
 
C. European Communities – Measures affecting the approval and marketing of biotech products : 
Status report by the European Union (WT/DS291/37/A dd.145) 
 
D. United States – Anti–dumping and countervailing measures on large residential washers from 
Korea : Status report by the United States (WT/DS464/17/A dd.29) 
 
E. United States – Certain methodologies and their application to anti –dumping proceedings 
involving China : Status report by the United States (WT/DS471/17/A dd.21) 
 
F. Indonesia – Importation of horticultural products, animals and animal products : Status report by 
Indonesia (WT/DS47 7/21/A dd.16 – WT/DS478/22/A dd.16) 
 
1.1.  The Chairman  noted that there were six sub -items under this Agenda item concerning status 
reports submitted by delegations pursuant to Article 21.6 of the DSU . He recalled that Article 21.6 
required that : "[u]nless the DS B decides otherwise, the issue of implementation of the 
recommendations or rulings shall be placed on the Agenda of the DSB meeting after six months 
following the date of establishment of the reasonable period of time and shall remain on the DSB's 
Agenda u ntil the issue is resolved" . Under this Agenda item, he invited delegations to provide up to 
date information about their compliance efforts . He also reminded delegations that, as provided for 
in Rule 27 of the Rules of Procedure for DSB meetings : "[r]epre sentatives should make every effort 
to avoid the repetition of a full debate at each meeting on any issue that has already been fully 
debated in the past and on which there appears to have been no change in Members' positions 
already on record" . He then tu rned to the first status report under this Agenda item . 
A. United  States – Anti–dumping measures on certain hot -rolled steel products from 
Japan : Status report by the United States (WT/DS184/15/Add.20 7) 
1.2.  The Chairman  drew attention to document WT/DS184/15/Add.207, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning US anti –dumping measures on certain hot -rolled steel products from Japan . 
1.3.  The representative o f the United States  said that the United States had provided a status report 
in this dispute on 17  August  2020, in accordance with Article 21.6 of the DSU. The United States 
had addressed the DSB's recommendations and rulings with respect to the calculatio n of 
anti-dumping margins in the hot -rolled steel anti -dumping duty investigation at issue. With respect 
to the recommendations and rulings of the DSB that had yet to be addressed, the US Administration 
would work with the US Congress with respect to appro priate statutory measures that would resolve 
this matter . WT/DSB/M/444  
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  1.4.  The representative of Japan  said that his country wished to thank the United States for its most 
recent status report and its statement made at the present meeting . Japan, once again, called on 
the United States to fully implement the DSB's recommendations and rulings so as to resolve this 
matter . 
1.5.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
B. United  States – Section 110(5) of the US Copyri ght Act: Status report by the 
United  States (WT/DS160/24/Add.1 82) 
1.6.  The Chairman  drew attention to document WT/DS160/24/Add.182, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning Section 110(5) of the US Copyright Act . 
1.7.  The representative of the United States  said that the United States had provided a status report 
in this dispute on 17  August  2020, in accordance with Article 21.6 of the DSU. The US Administration 
would continue to confer with the European Union, and to work closely with the US Congress, in 
order to reach a mutually satisfactory resolution of this matter . 
1.8.  The representative of the European Union  thanked the United States for its status report and 
its statement made at the present meeting . His delegation wished to refer to the EU's statements 
made at previous DSB meetings under this Agenda item . The EU wished to resolve this case as soon 
as possible . 
1.9.  The representative of China  said that m ore than two decades after the DSB had adopted 
recommendations and rulings in this dispute , the United States  had yet to achieve  full compliance  
in this dispute . The 183 US status reports provided thus far were not different from one another and 
none of them indicated any progress on implementation . Since this dispute remain ed unresolved, 
China believed that the United States continued to fail to accord the minimum standard of protection 
required by the TRIPS Agreement . As a result, the United States had become  the only WTO Member 
who failed to implement the DSB's recommendations and ruling s under the TRIPS Agreement . 
Article 21.1 of the DSU required Members to promptly bring its WTO -inconsistent measures into 
conformity so as to ensure effective resolution of disputes . Therefore, China urged the United States 
to faithfully implement the DSB 's recommendations and rulings  in this dispute without further delay.  
1.10.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
C. European  Communities – Measures affecting the approval and marketing of biotech 
products : Status report by the European Union (WT/DS291/37/Add.14 5) 
1.11.  The Chairman  drew attention to document WT/DS291/37/Add.145, which contained the 
status report by the European Union on progress in the implementation of the DSB's 
recommendations in the case concerning measures affecting the approval and marketing of biotech 
products . 
1.12.  The representative of the European Union  said that his delegation continued to progress with 
the authorizations where the European Food Safety Authority (EFSA) had fi nalized its scientific 
opinion and had concluded that there were no safety concerns . The EU had a solid record on the 
authorization of GMO requests : in 2019, 18 decisions had been adopted to authorize 65 new GMOs 
for feed and food, six GMOs had been renewed and one GM cut flower had been authorized . As 
repeatedly explained by the EU and confirmed by the US delegation during the EU -US biannual 
consultations held on 1 2 June 2019, efforts to reduce delays in authorization procedures were 
constantly maint ained at a high level at all stages of the authorization procedure . At previous DSB 
meetings, the United States had referred to what was known as the EU "opt -out Directive" . The EU 
wished to reiterate that the DSB's recommendations and rulings did not cove r that "opt -out 
Directive" . At the 2 9 July 2020 DSB meeting, the United States had claimed that 13 applications 
were awaiting risk management decisions . This figure needed to be put into perspective . With regard 
to three of these applications, the EFSA had  recently published opinions which were not fully 
conclusive . At the moment, no full scope authorization could be granted regarding these three WT/DSB/M/444  
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  applications . Finally, nine applications that had received a positive opinion from the EFSA were 
undergoing inte rnal procedures and would be presented for a vote as soon as these procedures were 
finalized . The next Standing Committee on genetically modified food and feed w ould take place on 
15 September  2020. The EU act ed in line with its WTO obligations . The EU wished to recall that the 
EU approval system was not covered by the DSB's recommendations and rulings . 
1.13.  The representative of the United States  thanked the European Union (EU) for its status report 
and its statement made at the present meeting. The United States appreciated the EU's update 
during the 29  July 2020 DSB meeting that the EU had scheduled its next Standing Committee on 
genetically mod ified food and feed for 15  September  2020. The United States requested that the 
Standing Committee move forward with this meeting without delay, as the past four meetings had 
been canceled (which had originally been scheduled for 6  March, 20  April, 12  June, and 10  July). 
The United States certainly understood the impact that COVID -19 restrictions had on daily 
operations. However, the United States continued to see persistent delays that affected dozens of 
applications that had been awaiting approval for an extended period – delays that existed long before 
COVID -19 restrictions had come into effect. The EU had previously suggested that, with respect to 
these delays, the fault was with the applicants. The United States disagreed; US concerns related to 
delays at every stage of the approval process resulting from the actions or inactions of the EU and 
its member States. Currently, approximately 20 applications were pending risk management 
decisions in the standing committee on biotech and two awaited final appro val by the European 
Commission. Three of these applications had been going through the EU approval system for over 
10 years. The United States urged the EU to adopt final approvals for those products that had 
completed evaluation by the Standing Committee.  The United States also urged the Standing 
Committee and Commission to issue final approvals for those products that had successfully received 
an EFSA positive opinion, yet remained under the Committee's "internal procedures". As the United 
States had stat ed at the 29  July 2020 DSB meeting, the United States did not acknowledge the EU's 
claims that there was no ban on genetically engineered (GE) products in the EU. Rather, the EU had 
failed to lift all of the WTO -inconsistent member -State bans covered by th e DSB's recommendation. 
The DSB had adopted findings that, even where the EU had approved a particular product, in many 
instances EU member States had banned those products for certain uses without a scientific basis. 
This included not only the two EU memb er States subject to panel findings – Austria and Italy. There 
were seven additional EU member States that previously maintained bans on cultivation and had 
since opted out of cultivation under the EU's legislation: Bulgaria, France, Germany, Greece, 
Hunga ry, Luxembourg, and Poland. There were also eight EU member States that did not previously 
ban cultivation of MON -810 but had since opted out of cultivation under the EU's legislation: Croatia, 
Cyprus, Denmark, Latvia, Lithuania, Malta, the Netherlands, an d Slovenia. Further, Austria and Italy 
appeared to maintain bans on other products subject to specific panel findings. The EU's only 
response, which it continued to repeat, was that the EU member States did not restrict marketing 
or free movement of MON -810 in the EU. As the United States had noted at the 29  July 2020 DSB 
meeting, this answer did nothing to address US concerns . 
1.14.  The United States also disagreed with the EU's response during the 29  July 2020 DSB meeting 
that opt -out procedures taken by EU mem ber States were "proportional, non -discriminatory and 
based on compelling grounds". The restrictions adopted by EU member States restricted 
international trade in these products, and had no scientific justification. Furthermore, despite the 
assertions of t he EU during the 29  July 2020 DSB meeting, this situation existed regardless of 
whether or not the European Commission received "complaints" from seed operators or 
stakeholders. Indeed, this was why the DSB had adopted findings that such restrictions on MO N-810 
were in breach of the EU's WTO commitments. The United States urged the EU to ensure that all of 
its measures affecting the approval of biotech products, including measures adopted by individual 
EU member States, were based on scientific principles, and that decisions were taken without undue 
delay. The United States looked forward to addressing the EU's other comments in the coming 
months and during the next US -EU biannual consultation, which the United States intended to 
schedule for Fall 2020 . 
1.15.  The representative the European Union  said that the WTO Agreements did not require full 
international harmonization and left some regulatory space or autonomy to individual WTO Members . 
The European Union had different regulatory approaches to non -GMOs and GMO s but, in all cases, 
such regulations did not discriminate between imported and domestic like products . No EU member 
State had imposed any "ban" . Under the terms of Directive 2001/18/EC, an EU member State could 
adopt measures restricting or prohibiting cu ltivation only when such measures were in line with EU 
law and were reasoned, proportional, non -discriminatory and based on compelling grounds . The free WT/DSB/M/444  
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  movement of seeds was embedded in Article 22 of Directive 2001/18/EC : "[m]ember States may 
not prohibit, restrict or impede the placing on the market of GMOs, as or in products, which comply 
with the requirements of this Directive" . The EU also noted that according to the provisions of the 
opt-out Directive (Article 26b, point 8) the measures adopte d under the Directive "shall not affect 
the free circulation of authorised GMOs" in the EU . Currently, the EU Common Catalogue of varieties 
of agricultural species included 150 varieties of maize MON -810, which were allowed to be marketed 
in the EU . As of the present meeting, the European Commission had never received any complaint 
from seed operators or other stakeholders concerning the restriction of marketing of MON -810 seeds 
in the EU . This confirmed the smooth functioning of the internal market of MON -810 seeds . The EU 
invited the United States to provide any evidence it might have at its disposal that would substantiate 
the disruption of the free movement of MON -810 seeds in the EU . 
1.16.  The DSB took note  of the statements and agreed  to revert to this matte r at its next regular 
meeting . 
D. United  States – Anti–dumping and countervailing measures on large residential 
washers from Korea : Status report by the United States (WT/DS464/17/Add.2 9) 
1.17.  The Chairman  drew attention to document WT/DS464/17/Add.29, which contained the status 
report by the United States on progress in the implementation of the DSB's recommendations in the 
case concerning anti -dumping and countervailing measures on large residential washers from Korea . 
1.18.  The represent ative of the United States  said that the United States had provided a status 
report in this dispute on 17  August  2020, in accordance with Article 21.6 of the DSU. On 6  May 2019, 
the US Department of Commerce had published a notice in the US Federal Registe r announcing the 
revocation of the anti -dumping and countervailing duty orders on imports of large residential 
washers from Korea (84 Fed. Reg. 19,763 (6  May 2019)). With this action, the United States had 
completed implementation of the DSB's recommendati ons concerning those anti -dumping and 
countervailing duty orders. The United States continued to consult with interested parties on options 
to address the recommendations of the DSB relating to other measures challenged in this dispute . 
1.19.  The representative of Korea  said that his country wished to thank the United States for its 
status report . Once again, Korea urged the United States to take prompt and appropriate steps to 
implement the DSB's recommendations for the "as such" measure at issue in this dispute . 
1.20.  The representative of Canada  said that the United States continued to fail to comply with the 
DSB's ruling, arising out of the Appellate Body report in this dispute, that the "differential pricing 
methodology" (DPM) was "as such" WTO -inconsistent . The United States had also ignored the DSB's 
recommendation that the United States bring itself into compliance with its obligations . Instead, the 
United States continued to apply the "as such" inconsistent differential pricing methodology in  
investigations with respect to foreign companies and continued to collect cash deposits from foreign 
exporters based on its inconsistent methodology . The reasonable period of time to implement the 
recommendations relating to the "as such" WTO -inconsistenc y of the DPM had expired more than 
two years ago . However, in its most recent status report, the United States stated that it continued 
to consult with interested parties . Moreover, the continued use by the United States of the DPM had 
forced Members to re sort to several dispute settlement proceedings concerning this measure . This 
was an inefficient and unnecessary use of WTO dispute settlement resources . Canada remained 
deeply concerned with the continued US failure to comply with the DSB's recommendations  and 
rulings in this dispute . This failure seriously undermined the security and stability of the multilateral 
trading system . 
1.21.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
E. United  States – Certain methodologies and their application to anti –dumping 
proceedings involving China : Status report by the United States (WT/DS471/17/Add. 21) 
1.22.  The Chairman  drew attention to document WT/DS471/17/Add.21, which contained the status 
report b y the United States on progress in the implementation of the DSB's recommendations in the 
case concerning certain methodologies and their application to anti -dumping proceedings involving 
China . WT/DSB/M/444  
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  1.23.  The representative of the United States  said that the United States had provided a status 
report in this dispute on 17  August  2020, in accordance with Article 21.6 of the DSU. As explained 
in that report, the United States continued to consult with interested parties on options to address 
the recommendations of the DSB. 
1.24.  The representative of China  said that on 2 2 May 2017, the DSB had adopted the Appellate 
Body report and the Panel report, as modified by the Appellate Body, in this dispute, which had 
found that certain measures taken by the United States were inconsistent with the requirements of 
the Anti -Dumping Agreement, which included : (i) the use of zeroing under the W -T methodology 
was as such incompatible with Article 2.4.2 ; (ii) the so -called single rate presumption as such 
violated Articles 6.10 and 9. 2; and (iii) the adverse facts available was a norm of general and 
prospective application which could be subject to future "as such" challenges . On 19 June 2017, the 
United States had stated its intention to implement the DSB's recommendations and rulings  in this 
dispute . The arbitration pursuant to Article 21.3(c) of the DSU had decided that the reasonable 
period of time (RPT) would be 15 months, expiring on 2 2 August  2018. Since the United States had 
failed to implement the DSB 's recommendations and ruli ngs in this dispute, China had requested the 
authorization to retaliate in accordance with Article 22.2 of the DSU . On 1 November  2019, the 
arbitration pursuant to Article 22.6 of the DSU  had determined that the level of nullification or 
impairment caused by the United States was US D 3.579  billion. T his number , which was the third 
largest retaliation amount in WTO history , reveal ed the severity of the WTO -inconsistent measures 
adopted by the United States . Regrettably, more than two years after the expiry  of the reasonable 
period of time , the United States continue d to fail to  implement the recommendations and rulings of 
the DSB in this dispute . None of its 22 status reports provided thus far indicated any implementation 
action . However, what China e xperienced in this dispute  was not an exception . The record show ed 
that US implementation, especially in trade remedy disputes, ha d long become a systemic problem 
for the entire  Membership . The US  unwillingness to comply with the DSB 's recommendations and 
rulings ha d seriously undermined the authority and effectiveness of the dispute settlement system . 
This wrongful US approach  undermine d the credibility of this Organization and that , in turn , was 
harmful for the whole world, including the United States . Implementation was the cornerstone of 
the dispute settlement system which kep t the rules -based , multilateral trading system afloat . 
Deliberate ly delay ing implementation or ignor ing this important obligation re duced the DSB 's 
recommendations and rulings to nothing more than a piece of paper . The refusal to implement WTO 
dispute settlement rulings w ould not only backfire on the US economy . It would  also cause the 
United States to lose its moral high ground when  asking other WTO Members to comply with WTO 
rules. Article 21.1 of the DSU stated that : "[p]rompt compliance with recommendations or rulings 
of the DSB is essential in order to ensure effective resolution of disputes to the benefit of all 
Members" . Therefore, China urged the United States to faithfully h onour its implementation 
obligation and take concrete actions to achieve full compliance in this dispute . 
1.25.  The DSB took note  of the statements and agreed  to revert to this matter at its next regular 
meeting . 
F. Indonesia – Importation of horticultural products, animals and animal products : Status 
report by Indonesia (WT/DS477/21/Add.1 6 – WT/DS478/22/Add.1 6) 
1.26.  The Chairman  drew attention to document WT/DS477/ 21/Add.16 – WT/DS478/22/Add.16, 
which contained the status report by Indonesia on progress in the implementation of the DSB's 
recommendations in the case concerning importation of horticultural products, animals and animal 
products . 
1.27.  The representative of Indonesia  said that his country had provided a status report pursuant 
to Article 21.6 of the DSU . Indonesia wished to reiterate its commitment to implementing the DSB's 
recommendations and rulings in these disputes . With regard to measures 1 –17, necessary 
adjustments to the relevant Ministry of Agriculture (MoA)  and Ministry of Trade (MoT)  regulations  
had continuously  been made and  regularly reported to t he DSB . Indonesia noted the continued 
concerns  raised by New Zealand and the United States . Regarding  Measure 18, discussion s between 
the Government and Parliament ha d been taking place in spite of the challenging circumstances due 
to the COVID –19 pandemic . Indonesia  believe d that the provisions relevant to these disputes in the 
draft amendment of the relevant laws w ould be addressed accordingly and appropriately . Indonesia 
would continue to engage with New Zealand and the United States regarding matters related to the 
DSB's recommendations and rulings.  WT/DSB/M/444  
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  1.28.  The representative of New Zealand  said that his country wished to thank Indonesia for its 
status report . New Zealand acknowledged Indonesia's commitment to comply fully with the DSB's 
recommendations and rulings in this dispute, as well as the steps that Indonesia had taken towards 
compliance t o date . It was disappointing that there continue d to be a need to have this item on the 
Agenda  of DSB meetings . Both compliance deadlines that had been  agreed between the parties ha d 
expired . New Zealand was seriously concerned that measures remain ed non-compliant . These 
include d: the failure to remove Measure 18 ; and the continued enforcement of limited application 
windows and validity periods , harvest period import bans , import reali zation requirements , and 
restrictions placed on import volumes based on s torage capacity . New Zealand was particularly 
concerned that difficulties continue d to be experienced in obtaining import recommendations and 
approvals . If this issue were not resolved promptly, it could undermine the progress made towards 
compliance to date . New Zealand strongly encourage d Indonesia to take appropriate steps, swiftly, 
to achieve full compliance with the DSB's recommendations and rulings in this dispute . 
1.29.  The representative of the United States  thanked Indonesia for its status report but was 
concerned that Indonesia had not brought its measures into compliance with WTO rules. The United 
States and New Zealand agreed that significant concerns remained with the  measures at issue, 
including the continued imposition of: harvest period restrictions, import realization requirements, 
warehouse capacity requirements, limited application windows, limited validity periods, and fixed 
licensed terms. The United States rem ained willing to work with Indonesia to fully and meaningfully 
resolve this dispute. The United States understood that Indonesia claimed to have "completed its 
enactment process" of certain regulations, but the United States was still waiting to hear from 
Indonesia on whether and how such action would bring its measures into full compliance. It also 
remained unclear how Indonesia's proposed legislative amendments would address Measure 18 and 
when Indonesia would complete its process. The United States looke d forward to receiving further 
detail from Indonesia regarding the changes to its regulations and laws, especially with respect to 
Ministry of Agriculture Regulation 46/2019 on Strategic Horticultural Commodities . 
1.30.  The DSB took note  of the statements and agreed to revert to this matter at its next regular 
meeting . 
2  UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000 : 
IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB  
A. Statement by the European Union  
2.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the European Union . He then invited the representative of the European Union to speak . 
2.2.  The representative of the European Union  said that on 1 May 2020, the EU had adjusted the 
level of suspension to t he nullification or impairment caused by the Continued Dumping and Subsidy 
Offset Act of 2000 (CDSOA) to the EU . The adjustment maintained unchanged the list of products 
subjected to retaliation while increasing the rate of additional duty to which those p roducts were 
subjected to 0.012 % in order to adjust to the level of retaliation . The letter informing of the 
adjustment, together with the Commission Delegated Regulation (EU) 2020/578 of 
21 February  2020, had been notified to the DSB on 2 6 June 2020. The EU requested, once again, 
that the United States stop transferring anti -dumping and countervailing duties to the US industry . 
Even if the amounts had considerably decreased, the latest CDSOA report from December  2018 
showed that amounts were still being di sbursed in practice . Every disbursement that still took place 
was clearly an act of non -compliance with the DSB's recommendations and rulings in this dispute . 
As long as the United States did not fully stop transferring collected duties, this item was righ tly 
under the DSB's surveillance . Due to the long -standing nature of this breach, the EU would continue 
to insist on placing this item on the Agenda of DSB meetings, as a matter of principle, and 
independently from the cost resulting from the application of such limited duties . The EU renewed 
its call on the United States to abide by its clear obligation under Article 21.6 of the DSU to submit 
implementation reports in this dispute . The EU would continue to place this item on the Agenda of 
DSB meetings as long as the United States had not fully implemented the DSB's rulings  and until 
the disbursements cease d completely.  
2.3.  The representative of Canada  said that his country wished to thank the European Union for 
placing this item on the Agenda of th e present meeting . Canada agreed with the EU that the Byrd WT/DSB/M/444  
- 9 - 
  Amendment should remain subject to the surveillance of the DSB until the United States ceased to 
administer it . 
2.4.  The representative of the United States  said that as the United States had noted at previous 
DSB meetings, the Deficit Reduction Act – which included a provision repealing the Continued 
Dumping and Subsidy Offset Act of 2000 – had been enacted into law more than 14 years ago in 
February  2006. T he Deficit Reduction Act did not permit the distribution of duties collected on goods 
entered after 1  October  2007, more than 12 years ago. Accordingly, the United States had long ago 
implemented the DSB's recommendations and rulings in these disputes. Eve n aside from this, it was 
evidently not common sense that was driving the EU's approach to this Agenda item. On 
26 June 2020, the EU had notified that it would apply an additional duty of 0.012% on certain 
imports of the United States. That was 12  thousand ths of one  per cent. There was no trade rationale 
for inscribing this item month after month. The EU had erroneously referred to a "clear obligation" 
under Article 21.6 of the DSU for the United States to submit a status report in this dispute. As the 
United States had explained repeatedly, there was no obligation under the DSU for a Member to 
provide further status reports on the progress of its implementation once that Member announced 
that it has implemented  the DSB recommendations. The widespread practi ce of Members – including 
the European Union as a responding party – confirmed this understanding of Article 21.6. Indeed, 
at recent DSB meetings, two Members (Brazil and China) had informed the DSB that they had come 
into compliance with the DSB's recomme ndations in three disputes (DS472, DS497, and DS517), 
and the complaining parties had not accepted the claims of compliance. Those Members announcing 
compliance had not provided a status report for the present meeting, consistent with the 
understanding tha t there was no obligation for a Member to provide further status reports once that 
Member announced that it had implemented the DSB's recommendations. The EU was a complaining 
party in one of those disputes (DS472). If the EU believed that status reports w ere "required" under 
the DSU, it would have insisted that the responding Member provide a status report, or the EU would 
have inscribed that dispute as an item on the Agenda of the present meeting. The EU had not done 
so. Therefore, it was once again clear  that the EU did not truly believe that there was a "clear 
obligation" under Article 21.6 to submit a status report after a party had claimed compliance . 
2.5.  The representative of the European Union  said that his delegation  maintain ed its statement 
that under Article 21.6 of the DSU, the issue of implementation shall remain on the DSB's Agenda 
until the issue was resolved . In this dispute , the EU d id not agree with the US assertion that it ha d 
implemented the DSB 's recommendations and rulings . This mean t that the issue remain ed 
unresolved for the purposes of Article 21.6 of the DSU. If the U nited States did not agree that the 
issue remain ed unresolved, nothing prevent ed it from seeking a multilateral determination through 
a compliance p rocedure.  
2.6.  The DSB took note of the statements.  
3  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING 
TRADE IN LARGE CIVIL AIRCRAFT : IMPLEMENTATION OF THE RECOMMENDATIONS 
ADOPTED BY THE DSB  
A. Statement by the United States  
3.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
the United States . He then invited the representative of the United States to speak . 
3.2.  The representative of the United States  noted that once again the European Union ha d not 
provided Members with a status report concerning the dispute "EC – Large Civil Aircraft" (DS316). 
As the United States had noted at several recent DSB meetings, the EU had argued – under a 
different Agenda item – that where the EU as a complaining pa rty did not agree with another 
responding party Member's " assertion  that it has implemented the DSB ruling", "the issue remains 
unresolved for the purposes of Article 21.6 DSU". Under this Agenda item, however, the EU argued 
that by submitting a compliance  communication, the EU no longer needed to file a status report, 
even though the United States as the complaining party did not agree with the EU's assertion that 
it had complied. The EU's position appeared to be premised on two unfounded assertions, neither of 
which was based on the text of the DSU. First, the EU had erroneously argued that where "a matter 
is with the adjudicators , it is temporarily taken out of the DSB's surveillance". There was nothing in 
the DSU text to support that argument, and the EU provided no explanation for how it read WT/DSB/M/444  
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  Article  21.6 of the DSU to contain this limitation. Second, the EU once again relied on  its incorrect 
assertion that the EU's initiation of compliance panel proceedings meant that the DSB was somehow 
deprived of its authority to "maintain surveillance of implementation of rulings and 
recommendations". Yet again, there was nothing in Article 2 of the DSU or elsewhere that limited 
the DSB's authority in this manner. The EU was not providing a status report because of its assertion 
that it had complied, demonstrating the EU's principles varied depending on its status as complaining 
or responding  party. In sum, the US position on status reports had been consistent and clear: under 
Article 21.6 of the DSU, once a responding Member announced to the DSB that it had complied, 
there was no further "progress" on which it could report, and therefore no f urther obligation to 
provide a status report. But as the EU allegedly disagreed with this position, it should for future 
meetings provide status reports in this “EC – Large Civil Aircraft” dispute (DS316).  
3.3.  The representative of the European Union  said that  his delegation reiterate d its position with 
respect to Article 21.6 as of the DSU expressed in detail at previous DSB meetings . At the present 
meeting, the EU wished to  focus on  its notification dated  21 August  2020 of additional and 
extraordinary complia nce measures that withdr ew all remaining subsidies and constitute d 
appropriate steps to remove adverse effects, substantially in excess of what was required by 
Article  7.8 of the SCM Agreement . The EU had taken  this extraordinary step in the context create d 
by the second compliance panel and the arbitration panel, along with the U S obstruction of 
appointments of new Appellate Body members, as a result of which  the EU was trapped by the 
prospect of an essentially indefinite authori zation of countermeasures, unilaterally maintained by 
the U nited States, coupled with a denial of any legal recourse to demonstrate compliance . The EU 
had decided to secure these additional and extraordinary measures with respect to the remaining 
two subsidies given the extremely unfavourable economic conditions created by the COVID -19 crisis, 
and with a view to achieving a situation in which there were no countermeasures on either side, so 
that both large civil aircraft  producers and other affected or potentially affected economic operators 
were properly able to contribute to a global recovery . These additional and extraordinary measures 
went far beyond wha t was required in order to discharge the EU's compliance obligations required 
by Article 7.8 of the SCM Agreement . These additional and extraordinary measures consist ed of: 
first, the amendment of the French A350XWB  MSF loan agreement so as to align the te rms of the 
financial instrument on a market benchmark prevailing at the time of the original measure, with 
prospective effect from the date of the amendment ; and, second,  the binding agreement to amend 
the Spanish A350XWB  MSF loan agreement so as to align the terms of the financial instrument on a 
market benchmark prevailing at the time of the original measure, with prospective effect from the 
date of the amendment . The full details of the measures ha d been shared with the United States in 
line with the app licable highly  sensitive business information ( HSBI) rules. The European Union ha d 
procured these additional, extraordinary and costly compliance measures in an effort to persuade 
rational and reasonable stakeholders in the United States, including consume rs, employers, workers, 
government officials and entities, airlines and other economic operators that now was the time to 
draw a line under these disputes . It was not in the interest of anyone that the European Union and 
the United States now proceed ed to, or continue d, mutually assured retaliation, and certainly not in 
the current economic climate . Instead of progressively stepping -up retaliatory measures, the EU and 
the United States  should step them down . With that in mind, the European Unio n reaffirm ed its 
determination to obtaining a long -term resolution to the WTO aircraft disputes . A balanced 
negotiated settlement was the only way to avoid mutually imposed countermeasures.  
3.4.  The representative of the United States  said that the United State s was aware that the EU had 
recently filed yet another notice of supposed compliance. The United States disagreed that the EU 
had achieved compliance. Instead, the United States agreed with the second compliance panel 
report, which had found that eight EU launch aid subsidies continued to cause adverse effects. The 
EU only asserted that it had amended two of these eight measures; it admittedly had made no 
changes to six WTO -inconsistent measures. And, unfortunately, the amendments the EU had made 
to French and Spanish A350 XWB launch aid were marginal and insufficient to withdraw those 
subsidies. The EU had also expressed doubt about US compliance in "US — Large Civil Aircraft (2nd 
complaint)" (DS353). But no one could deny that Washington State had terminat ed the aerospace 
tax break – and the EU had not denied it. The text of the measure was public, and its terms had 
been notified to the WTO and the EU. This was the sole measure found to cause adverse effects in 
the compliance proceeding. The  United States w as committed to obtaining a long -term resolution to 
this dispute. The United States had recently showed great restraint in its review of WTO -authorized 
countermeasures for the EU's WTO -inconsistent launch aid subsidies. And the United States intended 
to be gin a new process with the EU in an effort to reach an agreement that would remedy the WT/DSB/M/444  
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  conduct that harmed the US aviation industry and workers and would ensure a level playing field for 
US companies . 
3.5.  The representative of the European Union  said that his delegation  did not agree with the 
unilateral  US assertion that it ha d fully implemented the DSB recommendations and rulings in the 
"US — Large Civil Aircraft (2nd complaint)"  dispute  (DS353) . While the EU was still examining the 
impact of the legislative action concerning the Washington State B&O tax, the EU note d that the 
rulings in this dispute cover ed a number of additional measures where the US remain ed 
non-compliant (including NASA and Department of Defense Research and Development measure s 
and certain State and local measures) . As previousl y mentioned, following the Appellate Body report 
on compliance in the "EC – Large Civil Aircraft" case (DS316) , the EU had notified a set of compliance 
measures to the WTO that had brought the EU  into compliance with the ruling . The United States 
disagreed . On the basis of its disagreement , the U nited States continue d to apply countermeasures 
against products from the EU . At the same time, the U nited States was blocking the two -stage 
multilateral dispute settlement system, thus depriving the EU from seeking a multilateral 
determination of compliance regarding its measures.  
3.6.  The DSB took note of the statements.  
4  EUROPEAN UNION – SAFEGUARD MEASURES ON CERTAIN STEEL PRODUCTS  
A. Request for the establishment of a panel by Turkey (WT/DS595/3)  
4.1.  The Chairman  recalled that the DSB had considered this matter at the 2 9 July 2020 
DSB meeting and had agreed to revert to it, should a requesting Member wish to do so . He then 
drew attention to the communicat ion from Turkey contained in document WT/DS595/3 and invite d 
the representative of Turkey to speak . 
4.2.  The representative of Turkey  said that a t the DSB meeting on 2 9 July 2020, his country  had 
requested the DSB, for the first time, to establish a panel to examine the safeguard measures that 
the European Union ha d imposed on certain steel products . As stated at the 29 July 2020 
DSB meeting , Turkey was deeply concerned by those safeguard measures which were manifestly 
inconsistent with several of the EU 's obligations under Article XIX of the GATT and the Agreement 
on Safeguards . In particular, the European Union had failed to make reasoned and adequate 
determinations regarding the essential conditions and circumstances that were necessary to impose 
safeguard m easures . Hence, Turkey ha d initiated WTO dispute settlement proceedings . However , as 
Turkey had previously stated , while consultations had taken  place on 2 9 April 2020, they had failed 
to resolve th is dispute . Given that the panel ha d not been established at the 29 July 2020 
DSB meeting , Turkey, for the second time, request ed the DSB, pursuant to Article 6 of the DSU, to 
establish a panel to examine this matter with standard terms of reference in accordance with 
Article  7.1 of the DSU.  
4.3.  The representative of European Union  said that his delegation  expressed regret that Turkey 
had decided to request the establishment of a panel on EU safeguard measures on steel . The EU 
respect ed the right of Turkey to bring this matter to WTO dispute settlement but firmly believe d that 
its measures were fully justified . For these reasons, the EU  hoped that it w ould prevail in this dispute, 
and that its actions w ould be declared in line with WTO law . The EU also st ood ready to discuss with 
Turkey reciprocal interim arrangements that would preserve the availability of appellate review in 
this and ot her disputes on the basis of Article 25 of the DSU, through an arbitration agreement as 
set forth in the standard agreed default procedures in Annex 1 of the Multi -Party Interim Appeal 
Arbitration Arrangement (MPIA) . The MPIA fores aw that participating Members w ould notify any such 
agreement to the panel within 60 days of  its establishment . In this respect, the EU w ould gladly  
contact Turkey after th e present  meeting.  
4.4.  The DSB took note of the statements and agree d to establish a panel  in accordance with 
Article  6 of the DSU with standard terms of reference.  
4.5.  The representatives of Argentina , Brazil , Canada , China , India, Japan , Korea , Norway , Russia , 
Switzerland , Ukraine , the United Kingdom  and the United States  reserved their third -party rights to 
participate in the Panel's proceedings.  WT/DSB/M/444  
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  5  CHINA – DOMESTIC SUPPORT FOR AGRICULTURAL PRODUCERS  
A. Recourse to Article 21.5 of the DSU by China : Request for the establishment of a panel 
(WT/DS511/19)  
5.1.  The Chairman  drew atte ntion to the communication from China contained in document 
WT/DS511/19  and invite d the representative of China to speak.  
5.2.  The representative of China  said that o n 5 August  2020, China had submitted its request for 
the establishment of a compliance panel in this dispute , pursuant to Article 21.5 of the DSU and 
Article 19 of the Agreement on Agriculture . As the original respondent, China had been  reluctant to 
take this unusual action . China was doing so in light of the US failure, under Article 21.5 of the DSU, 
to initiate compliance proceedings to review the implementation  action s of China in this dispute . As 
documented in its most recent  status report, and as set out in its request  contained  in document 
WT/DS511/19 , China ha d fully implemented the DSB'S recommendations and rulings . From 2020  
onward , the Minimum Procurement Price (MPP) policies for wheat and rice set out maximum 
procurement amounts that serve d to limit the amount of production  eligible to receive the MPP . The 
procurement process was required to be monitored and published regularly, and in no event shall 
the actual procurement amount exceed the maximum procurement amount fixed each year . These 
newly amended measures ensure d full compliance with the DSB'S recommendations and rulings in 
this dispute . China was confident that its position w ould be supported by the compliance panel . 
Article 21.5 of the DSU explicitly state d that: "[w]here there is disagreement as to the existence or 
consistency with a covered agreement of measures taken to comply with the recommendations and 
rulings such dispute shall be decided through recourse to these dispute settlement procedures, 
including wherever possible resort to the original panel ". 
5.3.  In this dispute, China had fully implemented the recommendations and rulings of the DS B 
within the reasonable period of time,  it had submitted status reports in accordance with Article 21.6 
of the DSU and had provided additional implementation details thro ugh bilateral channel s upon US 
request . However, the United States continue d to fail to specify on what basis China 's 
implementation f ell short of full compliance . Even if the United States disagree d with China 's 
implementation, it was required to resolve the matter through proceedings  under Article 21.5 of the 
DSU. China expressed regret that the United States had chose n to directly pursue retaliation without 
first resort ing to compliance proceedings . The United States  had even refused to engage with China  
on reaching a sequencing arrangement, which was a customary practice in dispute settlement and 
a "logical way forward " to resolve the matter . China was very concerned about the systemic 
implication of the  US approach which would open the door to abus ing the dispute settlement system . 
In light of the US failure to engage, China ha d to take th is unusual step . Compliance proceedings 
would enable a proper review of compliance through a transparent multilateral dispute settlement 
mechanism . By filing this compliance panel request , China sought  to protect its rights under the 
covered agreements and find a positive resolution of th is dispute . China wished to state clearly that 
the burden of proof c ould not be shifted . It remain ed for  the United States to establish the 
WTO-inconsistency of China 's compliance measures . China strongly believe d that the compliance 
panel w ould confirm China 's full c ompliance . Moreover, to harmonize the different ongoing 
proceedings in this dispute, the Arbitrator under Article 22.6 of the DSU should suspend its work 
pending resolution of the proceedings under Article 21.5  of the DSU . Prompt findings under Article  21.5 
of the DSU would, therefore, assist the parties in securing a positive solution to the dispute.  
5.4.  Last but not least, s ince China  made tremendous efforts to comply with WTO rulings, China 
also ha d a reasonable and legitimate expectation that other WTO Members w ould also do so with 
the same goodwill and sincerity . However,  the Agenda  of the present meeting clearly revealed  the 
poor compliance record of the United States . In the "US – Anti-Dumping Me thodologies (China)" 
dispute ( DS471 ) and also in many other disputes, the United States had deliberately delayed or 
ignored its implementation obligations long after the expir y of the  respective  reasonable period s of 
time. Article 21.1 of the DSU set out a  single standard o f implementation . Each WTO Member should 
apply it to its offensive and defensive cases in the same manner . In this regard, China w ished to 
emphasize that the rules -based multilateral trading system had to  be preserved through good faith 
implementation efforts and a proper  compliance record from all Members . Clearly, t he United States 
was an important participant in the WTO dispute settlement mechanism . In addition to requesting 
Appellate Body reform and asking other Members to implement dispute settlement rulings, it seem ed 
also very important that the United States review and improve its own manner and record of 
implementing dispute settlement rulings . The United States was not an exception.  WT/DSB/M/444  
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  5.5.  The representative of the United States  said that as the United States had previously stated, 
the United States was not in a position to agree with China that it had come into compliance with 
the DSB's recommendations in this dispute. The United States rec alled that the DSB had found that 
China provided domestic support to its agricultural producers in excess of its Aggregate Measure of 
Support (AMS) commitments under the Agreement on Agriculture . The DSB had adopted these 
rulings in April  2019. Since then,  China continued to provide significant levels of domestic support 
to its agricultural producers. The revised market price support measures notified by China in 
June 2020 did not themselves demonstrate that China currently provided a level of domestic supp ort 
within its commitment levels. Therefore, China had not demonstrated that its AMS (as calculated 
per the Agreement on Agriculture ) would be within its commitment level in 2020. As such, the United 
States could not at this time confirm China's assertion of compliance. The United States had reserved 
its right to suspend concessions under Article 22.6 of the DSU, and the level of nullification and 
impairment resulting from China's provision of domestic support in excess of its AMS commitments 
had been refer red to arbitration. The United States had paused that proceeding . 
5.6.  The United States understood that China did not seek further litigation but was requesting a 
panel to preserve its rights as well. Contrary to the position taken by China, nothing in the DSU  
supported the view that an arbitration proceeding under Article 22.6 of the DSU had to be suspended 
while corresponding proceedings under Article 21.5 of the DSU were ongoing. Members had at times 
agreed through voluntary  agreements on the sequencing of p roceedings  or otherwise to conduct 
proceedings in such an order, but as Members were well aware, this was not required under the 
DSU. In some disputes, an agreement provided for the completion of a compliance proceeding under 
Article 21.5 of the DSU before  a Member could request authorization to suspend concessions or other 
obligations. In others, the parties agreed that, once a Member requested authorization pursuant to 
Article 22.2 of the DSU and the responding Member objected, the arbitration could be su spended to 
permit proceedings under Article 21.5 of the DSU to occur. Where no sequencing agreement had 
been reached between the parties, as was the case in this dispute, a complaining Member had to 
request authorization to suspend concessions or other obl igations within the time -frame specified in 
Article 22.6 of the DSU or risk prejudicing its rights to do so at a later date. Accordingly, in this 
proceeding, the United States had done so in a timely manner. The United States stood ready to 
work constructi vely with China to reach a resolution to this dispute. For these reasons, the United 
States was not in a position to agree to the establishment of a compliance panel . 
5.7.  The DSB took note of the statements and agree d to revert to this matter, should a requesting 
Member wish to do so.  
6  THAILAND – CUSTOMS AND FISCAL MEASURES ON CIGARETTES FROM THE 
PHILIPPINES  
A. Statement by the Chairman on consultations with Thailand and the Philippines with 
regard to the Recourse to Ar ticle 22.2 of the DSU (WT/DS371/32)  
B. Statement by the Philippines  
C. Statement by Thailand  
6.1.  The Chairman  said that under the first sub -item, he wished to make a statement under his own 
responsibility in order to report to delegations on his consultations with Thailand and the Philippines 
in the "Thailand – Cigarettes (Philippines)" dispute (DS371) following the 2 9 June 2020 
DSB meeting . His statement was without prejudice to the rights and obligations of the parties to this 
dispute or of any other Member . He recalled that these consultations had first been conducted by 
the previous DSB Chair, Amb.  Walker, prior to the 5 March  2020 DSB meeting . At that meeting, the 
matter had been suspended in order to allow more time for consultations . Following his appointment 
as DSB Chair on 2 0 May 2020, the Chairman had been consulting with Thailand and the Philippines 
on this matter . He had held virtual intensive consultations with the parties in preparation for the 
29 June 2020 DSB  meeting . Following the 2 9 June 2020 DSB meeting, he had continued his 
intensive consultations with the parties to this dispute and had held three meetings in the interim to 
discuss this matter . Immediately after the 29  July 2020 DSB meeting, he had  held another meeting 
in-person with th e parties to this dispute on 3 0 July 2020 and he intend to continue to consult on 
this matter . Since his consultations were ongoing, it was not his intention to have a discussion on 
this matter at the present meeting . He hoped that this was agreeable to al l Members . 
6.2.  The DSB took note of the statement.  WT/DSB/M/444  
- 14 - 
  6.3.  The Chairman  invited the representative of the Philippines to speak . 
6.4.  The representative of the Philippines  said that his country  sincerely appreciate d the Chairman's  
report and his ongoing efforts . His country thank ed the Chair man and the DSB Secretariat for the 
nine questions sent to the Philippines  on 3 August  2020. The Philippines  would be submitting its 
responses to the nine questions on 28 August  2020 and trust ed that they would be  helpful to the  
Chairman and the DSB in better understanding the parties'  respective positions on the issues before 
them. The Philippines remain ed open, ready and willing to constructively engage with Thailand in 
resolving their long-standing dispute . In the spirit of cooperation, and on the Chair man's suggestion, 
the Philippines had proposed , in its 9 March  2020 letter , that the parties commence di scussions 
towards a constructive solution in order to complete Thailand's appeals which had been  suspended 
as a result of the non -functioning  of the Appellate Body . Further to its willingness and openness to 
cooperate, the Philippines  also had provided the  Chairman and the DSB , in its 24 July 2020 
communication , a non -exhaustive list of various constructive alternative legal options that ha d been 
resorted to in the past that might allow for the resolution of Thailand's appeals . The Philippines'  
openness was without prejudice to its consistent position that the Philippines was fully within its 
rights to seek recourse under Article 22.2 of the DSU . As the Philippines  had previously stated, the 
provisions of Article 22.6 of the DSU were clear : the DSB , upon req uest, shall grant authorization to 
suspend concessions or other obligations within 30 days of the expiry of the reasonable period of 
time unless the DSB decide d by consensus to reject the request ; and if the Member concerned 
object ed to the proposed level of suspension of concessions , the matter shall be referred to 
arbitration . Therefore, the Philippines  believe d that  there were only two options under the reverse 
consensus rule of  Article 22.6  of the DSU : first, the DSB granting authorizatio n to suspend 
concessions ; or, second, the DSB referring the matter to arbitration . At the present  meeting, the 
Philippines ask ed, once again , that the DSB grant the Philippines the authority it s ought . 
6.5.  The DSB took note of the statement  made by the Philipp ines. 
6.6.  The Chairman  invited the representative of Thailand to speak . 
6.7.  The representative of Thailand  wished to thank the Chairman,  once again , for his efforts and 
active engagement in assisting Thailand and the Philippines to find a way forward in this dispute . 
The consultations the Chairman  had initiated with the parties were facilitating a constructive dialogue 
and were permitting a clarification of t he parties' respective positions . Thailand remain ed committed 
to engaging in the ongoing dialogue conducted under the Chairman's  leadership . For purposes of 
the present  meeting, Thailand wished to refer to its statements made at the DSB meetings of 
5 March  2020, 2 9 June 2020 and 2 9 July 2020 during which  Thailand ha d set out its views on the 
status of this dispute . Thailand d id not wish to repeat in detail its prior statements on this matter . 
However, Thailand consider ed it important to briefly recall the circumstances surrounding the 
Philippines' request for suspension of concessions and the reasons why the Philippines was legally 
prevented from making such a request . As Members knew, the appeals filed by Thailand in the two  
compliance proceedings under Article 21.5 of the DSU ha d not yet been completed due to the 
Appellate Body impasse . As these appeals regarding proceedings under Article 21.5  of the DSU we re 
ongoing, the Philippines' retaliation request was without legal ba sis at this stage of the dispute . 
There was no possible reading of either the sequencing agreement between the parties or 
Article  22.6 of the DSU that would allow the Philippines to request retaliation prior to the completion 
of the ongoing appeals  regardi ng proceedings under Article 21.5 of the DSU . The Philippines would 
be permitted to request retaliation only if the Appellate Body were to find that Thailand had failed 
to comply with the DSB's rulings and recommendations in the original dispute . Only then  would the 
Philippines be in a position to request  the authorization  from the DSB  to retaliate in accordance with 
Article 22.6 of the DSU . Despite the clear absence of any legal justification for the Philippines' 
retaliation request at this time, Thailand had accepted to engage in the ongoing consultations 
organized by the Chair man with the aim of finding a way forward in light of the present 
circumstances . As Thailand had previously stated, these consultations ha d been productive , and  
Thailand remain ed committed to this exercise.  
6.8.  Thailand also wished to take this opportunity to comment briefly on the list of alternative 
arrangements suggested by the Philippines that had been  circulated to WTO Members on 
3 August  2020.2 The Philippines note d that this constitute d "a non -exhaustive list of various 
 
2 Thailand – Customs and Fiscal Measures on Cigarettes from the Philippines (DS371), Communication 
from the Philippines, 3 August 2020, WT/DS371/40.  WT/DSB/M/444  
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  alternat ive arrangements that WTO Members have utilized in the past" .3 Thailand thank ed the 
Philippines for this list, but note d that none of these arrangements had been  used in disputes in 
which there were appeals already pending before the Appellate Body . Thus, the Philippines' list 
describe d agreements to resolve appeals under Article 25 of the DSU either for future potential 
disputes (items 5 and 6 of the Philippines' list) or for existing disputes where the panel report ha d 
not yet been issued and thus no app eal ha d been filed (items 9 and 11 of the Philippines' list) . Other 
arrangement s consist ed of "non -appeal understandings" (items 4 and 8 of the Philippines' list), which 
obviously d id not apply to the present dispute because Thailand ha d already filed appe als. Therefore, 
while the Philippines ' list was informative, it d id not resolve the issue now facing the parties  of how 
to ensure that this dispute was resolved using multilaterally agreed rules for dispute settlement . In 
these circumstances, Thailand call ed on all WTO Members to focus on resolving the Appellate Body 
crisis which, as all Members knew, was the root cause of the discussions under this Agenda item . 
Thailand look ed forward to continuing the multilateral efforts to unblock the Appel late Body impasse , 
as Members  would discuss under  Agenda item 9 of the present  meeting . Thailand also looked forward 
to reviving the informal "Walker process" on AB matters , an exercise in which Thailand ha d been an 
active participant from the beginning . Thailand wished to thank the Chair man for the opportunity to 
make a statement at the present  meeting . Thailand look ed forward to the next steps in the 
consultations facilitated by the Chair man of the DSB  in this dispute.  
6.9.  The DSB took note  of the statement  made by Thailand . 
6.10.  The representative of Japan  said that a  so-called  "sequenc ing agreement " was an agreement 
between the parties and c ould not modify the provision s of the DSU . Neither c ould it add to  or 
diminish the authority of the DSB . Japan consider ed that it was not the role of the DSB to decide on 
the meaning of a sequencing agreement and whether a request for authorization to suspend 
concessions or other obligations was made properly under such an agreement.  
6.11.  The representative of European Union  said that i n these extraordinary circumstances due to  
the paralysis of the Appellate Body, the EU call ed on the parties concerned to seek an agreed solution 
that would preserve the rights of both parties in a balanced manner . The EU w ished to point out that 
the parties could decide to submit the suspended appeal s for completion under an appeal arbitration 
procedure pursuant to Article 25 of the DSU, such as the MPIA . An appeal arbitration procedure like 
the MPIA could , for all practical purposes, replicate all substantive and procedural aspects of 
appellate review . The EU trust ed that the Chair man could assist the parties in reaching such a 
solution . In response to certain views expressed in other statements made at the present meeting , 
the EU  wished  to register on the record its disagreement with the assumption that a sequencing 
agreement concluded between tw o disput ing parties preclude d the complaining party from 
requesting the suspension of concessions . The EU wishe d to refer to its statements made at previous 
DSB meetings on this matter.  
6.12.  The DSB took note of the statements.  
6.13.  The Chairman  said that  in light of the importance and the sensitivity of this matter, he would  
continue to consult with the parties to this dispute and that he would report back to delegations.  
6.14.  The DSB took note  of the statement . 
7  PROPOSED NOMINATION FOR THE INDICATIVE LIST OF G OVERNMENTAL AND 
NON-GOVERNMENTAL PANELISTS (WT/DSB/W/667)  
7.1.  The Chairman  drew attention to document WT/DSB/W/667 which contained an additional name 
proposed by Montenegro for inclusion on the Indicative List of Governmental and Non -Governmental 
Panelists, in accordance with Article  8.4 of the DSU . He proposed that the DSB approve the name 
contained in document WT/DSB/W/667 . 
7.2.  The DSB so agreed . 
 
3 Ibid, para. 2.  WT/DSB/M/444  
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  8  APPELLATE BODY APPOINTMENTS : PROPOSAL BY AFGHANISTAN ; A NGOLA ; 
ARGENTINA ; AUSTRALIA ; BANGLADESH ; BENIN ; PLURINATIONAL STATE OF BOLIVIA ; 
BOTSWANA ; BRAZIL ; BURKINA FASO ; BURUNDI ; CABO VERDE ; CAMEROON ; CANADA ; 
CENTRAL AFRICAN REPUBLIC ; CHAD; CHILE ; CHINA ; COLOMBIA ; CONGO ; COSTA RICA ; 
CÔTE D'IVOIRE ; CUBA; DEMOCRATIC REPUBLIC OF CONGO ; DJIBOUTI ; DOMINICAN 
REPUBLIC ; ECUADOR ; EGYPT ; EL SALVADOR ; ESWATINI ; THE EUROPEAN UNION ; GABON ; 
THE GAMBIA ; GHANA ; GUATEMALA ; GUINEA ; GUINEA -BISSAU ; HONDURAS ; HONG KONG, 
CHINA ; ICELAND ; INDIA ; INDONESIA ; ISRAEL ; KAZAKHSTAN ; KENYA ; REPUBLIC OF 
KOREA ; LESOTHO ; LIECHTENSTEIN ; MADAGASCAR ; MALAWI ; MALAYSIA ; MALDIVES ; 
MALI; MAURITANIA ; MAURITIUS ; MEXICO ; REPUBLIC OF MOLDOVA ; MOROCCO ; 
MOZAMBIQUE ; NAMIBIA ; NEPAL ; NEW ZEALAND ; NICARAGUA ; NIGER ; NIGERIA ; NORTH 
MACEDONIA ; NORWAY ; PAKISTAN ; PANAMA ; PARAGUAY ; PERU; QATAR ; RUSSIAN 
FEDERATION ; RWANDA ; SENEGAL ; SEYCHELLES ; SIERRA LEONE ; SINGAPORE ; SOUTH 
AFRICA ; SWITZERLAND ; THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, 
KINMEN AND MATSU ; TANZANIA ; THAILAND ; TOGO; TUNISIA ; TURKEY ; UGANDA ; 
UKRAINE ; UNITED KINGDOM ; URUGUAY ; THE BOLIVA RIAN REPUBLIC OF VENEZUELA ; 
VIET NAM ; ZAMBIA AND ZIMBABWE (WT/DSB/W/609/REV.18)  
8.1.  The Chairman  said that this item was on the Agenda of the present meeting at the request of 
Mexico, on behalf of a number of delegations . He then drew attention to the proposal  contained in 
document WT/DSB/W/609/Rev.18 and invited the representative of Mexico to speak . 
8.2.  The representative of Mexico , speaking on behalf of the co -sponsors of the joint proposal 
contained  in document  WT/DSB/W/609/Rev.18 , said that the delegations in question had agreed to 
submit the joint proposal dated  18 June 2020 to launch the AB selection processes . Her delegation, 
on behalf of 121 Members, wished to make the following statement . The extensive number of 
Members submitting this joint  proposal reflected a common concern with the current situation of the 
Appellate Body that was seriously affecting the overall dispute settlement system against the best 
interest of WTO Members . Members had a responsibility to safeguard and preserve the Ap pellate 
Body, the dispute settlement system and the multilateral trading system . Thus, it was the Members' 
duty to launch the AB selection processes without further delay as set out in the joint proposal, 
which sought to : (i) start six selection processes : one process to replace Mr Ricardo 
Ramírez -Hernández, whose second term had expired on 3 0 June 2017; a second process to fill the 
vacancy that had occurred following the resignation of Mr Hyun Chong Kim with effect from 
1 August  2017; a third process to replace Mr Peter Van den Bossche, whose second term had expired 
on 11 December  2017; a fourth process to replace Mr Shree Baboo Chekitan Servansing, whose 
four-year term of office had expired on 3 0 September  2018; a fifth process to repla ce Mr Ujal Singh 
Bhatia, whose second term had expired on 1 0 December  2019; and a sixth process to replace 
Mr Thomas R.  Graham whose second term had expired on 1 0 December  2019; (ii) to establish a 
Selection Committee ; (iii) to set a deadline of 30 days fo r the submission of candidacies ; and (iv) to 
request that the Selection Committee issue its recommendation within 60 days after the deadline 
for nominations of candidates . The proponents were flexible regarding the deadlines for the AB 
selection processes . However, they believed that Members should consider the urgency of the 
situation . They continued to urge all Members to support this proposal in the interest of the 
multilateral trading system and the dispute settlement system . 
8.3.  The representative of the European Union  said that his delegation wished to refer to the EU 
statements made on this issu e at previous DSB meetings, starting in February  2017, as well as to 
its statements made at General Council meetings, including at the 9 December  2019 G eneral Council  
meeting . Since 1 1 December  2019, the WTO no longer guaranteed access to a binding, two -tier, 
independent and impartial resolution of trade disputes . This was in clear breach of the WTO 
Agreements . As the EU had stated repeatedly, Members had  a shared responsibility to resolve this 
issue as soon as possible, and to fill the outstanding vacancies as required by Article 17.2 of the 
DSU. The EU thanked all Members that had co -sponsored the proposal to launch the AB selection 
processes . The EU inv ited all other Members to endorse this proposal . 
8.4.  The representative of the United States  said that as the United States had explained at prior 
DSB meetings, the United States was not in a position to support the proposed decision. The systemic 
concerns tha t the United States had identified remained unaddressed. Instead, Members should 
consider how to achieve a meaningful reform of the dispute settlement system. The US view across 
multiple US Administrations had been clear and consistent: When the Appellate Body overreached 
and itself broke WTO rules, it undermined the rules -based trading system. The Appellate Body's WT/DSB/M/444  
- 17 - 
  abuse of the limited authority that Members had given it damaged the interests of all WTO Members 
who cared about a WTO in which the agreements were respected as they had been negotiated and 
agreed. Earlier in 2020, the Office of the US Trade Representative had published a Report on the 
Appellate Body of the World Trade Organization, detailing how the Appellate Body had failed to apply 
WTO rules a s agreed by WTO Members, imposing new obligations and violating Members' rights.4 
The United States encouraged Members to review the Report. As the United States had explained 
repeatedly, the fundamental problem was that the Appellate Body had not respect ed the current, 
clear language of the DSU. Members could not find meaningful solutions to this problem without 
understanding how they had arrived at this point. Without an accurate diagnosis, Members could 
not assess the likely effectiveness of any potenti al solution. The United States had actively sought 
engagement from Members on these issues. Yet, some Members had remained unwilling to admit 
that there was even a problem, much less engage in a deeper discussion of the Appellate Body's 
failures. And rathe r than seeking to understand why the Appellate Body had departed from what 
Members had agreed, these Members and others had redirected the focus and energies of the 
Membership to pursue an arrangement that would, at best, perpetuate the failings of the App ellate 
Body.5 
8.5.  Nevertheless, the United States was determined to bring about real WTO reform. Members had 
to ensure that the WTO dispute settlement system reinforced the WTO's critical negotiating and 
monitoring functions, and did not undermine those funct ions by overreaching and gap -filling. As 
discussions among Members continued, the dispute settlement system continued to function. The 
central objective of that system remained unchanged: to assist the parties to find a solution to their 
dispute. As before , Members had many methods to resolve a dispute, including through bilateral 
engagement, alternative dispute procedures, and third -party adjudication. As noted at prior 
meetings of the DSB, Members were experimenting and deciding what made the most sense f or 
their own disputes. For instance, in "Indonesia – Safeguard on Certain Iron or Steel Products" 
(DS490, DS496), Chinese Taipei, Indonesia and Vietnam had reached procedural understandings 
that included an agreement not to appeal any compliance panel repo rt.6 Similarly, in the dispute 
"United States – Anti-Dumping Measures on Certain Oil Country Tubular Goods from Korea"  
(DS488), Korea and the United States had agreed not to appeal the report of any compliance panel.7 
Australia and Indonesia had agreed not t o appeal the panel report in the dispute " Australia – 
Anti-Dumping Measures on A4 Copy Paper " (DS529).8 Parties should make efforts to find a positive 
solution to their dispute, consistent with the aim of the WTO dispute settlement system. The United 
States would continue to insist that WTO rules be followed by the WTO dispute settlement system. 
The United States would continue its efforts and its discussions with Members and with the Chair to 
seek a solution on these important issues . 
8.6.  The representative o f Brazil  said that his country wished to  thank Mexico for explaining the 
joint proposal contained  in document  WT/DSB/W/609/Rev.18 . Brazil wished to refer to its 
statements made at previous DSB meetings under this Agenda item. Two items that were on the 
 
4 US Trade Representative, Report on the Appellate Body of the World Trade Organization 
(February  2020), available at https://geneva.usmission.gov/wp -content/uploads/sites/290/AB -
Report_02.11.20.pdf.  
5 See US Statement at the 29 June 2020 DSB meeting (item 13), available at: 
https://geneva.usmission.gov/wp -content/uploads/sites/290/Jun29.DSB_.Stm t_.as-deliv.fin_.public13218.pdf.  
6 "Understanding between Indonesia and Chinese Taipei regarding Procedures under Articles 21 and 22 
of the DSU", (WT/DS490/3) (11 April 2019), para. 7 ("[t]he parties agree that if, on the date of the circulation 
of the pa nel report under Article 21.5 of the DSU, the Appellate Body is composed of fewer than three 
Members available to serve on a division in an appeal in these proceedings, they will not appeal that report 
under Articles 16.4 and 17 of the DSU") and "Understan ding between Indonesia and Viet Nam regarding 
Procedures under Articles 21 and 22 of the DSU", WT/DS496/14 (22 March 2019), para. 7 ("[t]he parties agree 
that if, on the date of the circulation of the panel report under Article 21.5 of the DSU, the Appella te Body is 
composed of fewer than three Members available to serve on a division in an appeal in these proceedings, they 
will not appeal that report under Articles 16.4 and 17 of the DSU").  
7 "Understanding between the Republic of Korea and the United Stat es regarding Procedures under 
Articles 21 and 22 of the DSU", (WT/DS488/16) (6 February 2020), para. 4 ("[f]ollowing circulation of the 
report of the Article 21.5 panel, either party may request adoption of the Article 21.5 panel report at a meeting 
of the  DSB within 60 days of circulation of the report. Each party to the dispute agrees not to appeal the report 
of the Article 21.5 panel pursuant to Article 16.4 of the DSU").  
8 Minutes of the 27 January 2020 DSB meeting (WT/DSB/M/440), paras. 4.2 ("Indonesia  also wished to 
thank Australia for working together with Indonesia in a spirit of cooperation in order to reach an agreement 
not to appeal the Panel Report" and 4.3 ("Australia and Indonesia had agreed not to appeal the Panel Report 
and to engage in good faith negotiations of a reasonable period of time for Australia to bring its measures into 
conformity with the DSB's recommendations and rulings, in accordance with Article 21.3(b) of the DSU").  WT/DSB/M/444  
- 18 - 
  Agenda of the present meeting provide d a vivid illustration, if any were needed, that this impasse 
was seriously impacting Members ' ability to have their disputes resolved as was their right under 
the DSU . This problem could  affect a growing numb er of disputes going forward . Brazil st ood ready, 
as it ha d always been, to engage with all Members in frank, meaningful discussions aimed at reaching 
a lasting multilateral solution to th e AB impasse.  
8.7.  The representative of the United Kingdom  said that his  country continue d to support the 
proposal for the launch of the AB selection process es. The United Kingdom wished  to refer to its 
statements made at previous DSB meetings under  this Agenda item . The United Kingdom  also 
support ed the statement made by Mexico on behalf of all co -sponsors . The United Kingdom  
continue d to be concerned that the WTO Membership ha d not been able to launch the AB selection 
processes . Members were currently  seeing complete impairments of rights arising fr om that 
situation . While it did not underestimate the challenge of reaching necessary reforms, the United 
Kingdom  continue d to view a two -stage dispute settlement system with the support of all Members  
as an essential pillar of the multilateral trading sys tem. The United Kingdom  had listened carefully 
to the concerns raised and proposals advanced and continue d to call on all Members to engage in a 
solutions -based discussion on reform.  
8.8.  The representative of Canada  said that his country  support ed the statement made by Mexico, 
and that it  share d the concerns expressed by other Members at the present meeting . Canada  invite d 
WTO Members that ha d not yet sponsored the proposal contained  in document  
WT/DSB/W/609/Rev.18 to consider joining the 121 Membe rs calling for the launch of the AB 
selection process es. The critical mass of WTO Members behind this proposal was a clear testimony 
to the importance that they all accord ed to a fully functioning Appellate Body as an integral part of 
the dispute settlement system . The fact that the Appellate Body c ould not hear new appeals was of 
great concern . Canada reiterate d that it was fully committed to discussions on matters related t o 
the functioning of the Appellate Body . Canada's  priority remain ed to find a long -lasting multilateral 
resolution to the impasse that cover ed all Members, including the United States . In the meantime, 
Canada and 22 other WTO Members ha d established the Mu lti-Party Interim Appeal -Arbitration 
Arrangement (MPIA) as a contingency measure to safeguard our rights to binding two -stage dispute 
settlement in disputes amongst themselves . The MPIA was open to all WTO Members . Canada  invite d 
all WTO Members to conside r joining the MPIA to safeguard their dispute settlement rights to the 
greatest extent possible until they collectively f ound a permanent solution to the Appellate Body 
impasse . Canada remain ed available to discuss the MPIA with any interested Member.  
8.9.  The representative of New Zealand  reiterate d his country's  support for the co -sponsored 
proposal contained  in document  WT/DSB/W/609/Rev.18 and to refer to its statements  made at 
previous DSB meetings on this matter . New Zealand  continue d to urge all Members t o engage, 
constructively, on the issues with a view to urgently addressing this serious situation.  
8.10.  The representative of Norway  said that his country wished to be associate d with the statement 
made by Mexico  under this Agenda item . At this point, Members w ere experienc ing the damaging 
consequences of blocking Appellate Body appointments at every DSB meeting . Norway, once again, 
urged the United States to do the right thing , i.e., to unblock the AB selection  process es, and to 
thereby uphold the rule of law and the integrity of the international trading system . Until this 
happen ed, Norway  encourage d all Members to join the newly established Multi -Party Interim Appeal 
Arrangement  (MPIA). 
8.11.   The representative of Nigeria , speaking on behalf of the African Group , said that the Group  
support ed the statement made by Mexico under this Agenda item . The African Group wished to refer 
to its statements made at previous DSB meetings  on this matter . 
8.12.  The representative of Korea  said that , like other  Member s, his country  support ed the 
statement made by Mexico regarding  the joint proposal  contained  in document  
WT/DSB/W/609/Rev.18 . Korea urge d all Members to engage constructively  in the discussions to 
resolv e this important issue as soon as possible.  
8.13.  The representative of Singapore  said that his country wished to thank Mexico for its 
statement . Singapore wished to refer to its statements made at previous DSB meetings on this 
matter . Singapore reiterate d its strong systemic interest in the maintenance of the two -tier binding 
WTO dispute settlement mechanism that was underpinned by negative consensus . The unblocking WT/DSB/M/444  
- 19 - 
  of the AB selection process es had to  remain the paramount priority for all Member s. Singapore  urged 
all Members, including the United States, to constructively engage in finding a lasting multilateral 
solution.  
8.14.  The representative of Thailand  said that a s a co -sponsor, his country support ed Mexico 's 
proposal to fill the AB vacancies . Thailand believed  that the two -tier binding WTO dispute settlement 
system was a central element in providing security and predictability to the multilateral trading 
system . The current Appellate Body  impasse  affect ed the ability of Members to secure a positive 
solution to their disputes . As one of the Members with pending appeals, Thailand 's rights ha d been 
impaired as a result of the Appellate Body impasse . Restoring a fully functioning dispute settlement 
system was a priority for preserv ing the rights and obligations of WTO Members . Thailand  strongly 
urged all Members to identify a long -term solution to this problem.  
8.15.  The representative of Hong Kong, China  said this his delegation support ed the statement 
made  by Mexico o n behalf of the co -sponsors  of th e proposal  contained  in document  
WT/DSB/W/609/Rev.18 . Hong Kong, China  reiterate d its concerns with the lack of progress in 
resolving the Appellate Body impasse . The AB selection process es should commence without any 
delay . Hong Kong, China  urged Members to continue with the ir efforts and constructive engagement 
until a solution was found.  
8.16.  The representative of Qatar  said this delegation wishe d to refer to its statements made at 
previous DS B meetings on this matter . Qatar support ed the statement made by Mexico on behalf of 
121 Members . Qatar expressed regret that , to date, the DSB ha d failed to initiate the AB selection 
process es. Qatar recall ed that Members ha d a shared obligation to promptly fill the vacancies in the 
Appellate Body  as required by Article 17.2 of the DSU . The clear text of that provision indicate d that 
such responsibility had to  be fulfilled unconditionally . To avoid uninten ded consequences, Qat ar 
called on all Members to act in a cooperative manner in order to break the impasse in the AB selection 
process es without further delay . Qatar also  wishe d to emphasize that discussions on improving the 
DSU should not be a reason to delay the AB appointments . Qatar was ready to work on a solution 
with all Members while preserving the essential features  of the system and  of the Appellate Body . 
8.17.  The representat ive of Switzerland  said that his country wished to refer to its statements made 
at previous DSB meetings  on this matter . As time passe d, Members' resolve to solve the current 
impasse should not falter . Switzerland  urged all Members to engage constructively  in order to find 
concrete solutions . Switzerland was committed to working with all Members towards that goal . 
Switzerland's  priority  remain ed that the two -tier binding dispute settlement system c ould fully 
function again to the benefit of the entire Membership.  
8.18.  The representative of Japan  said that his country wished to refer to its statements made at 
previous DSB meetings under this Agenda item . Japan supported the proposal  contained  in 
document  WT/DSB/W/609/Rev.18 . Japan fully shared the sense of urgency of other WTO Members 
regarding the need for expeditious WTO reform . However, beyond the current impasse, Japan's 
priority remained to reform the WTO dispute settlement system in a ma nner that would serve to 
achieve a long -lasting solution to the Appellate Body  impasse.  
8.19.  The representative of Indonesia  said that his country wishe d to refer to its statements made  
at previous DSB meetings under this Agenda item . The current crisis surroun ding the Appellate Body 
should be deemed as alarming for this Organization, bearing in mind the centrality of WTO dispute 
settlement system for the resolution of disputes among WTO Members . The unavailability of the 
Appellate Body to carry out appellate review ha d also clearly adverse ly impact ed the dispute 
settlement system 's ability to provid e predictability to the rules –based multilateral trading system . 
Indonesia believe d that finding a  solution to this issue should be the utmost priority of all Members . 
Therefore , Indonesia,  once again , urged all Members to afford  serious attention, willingness  and 
commitment to resolving this important issue.  
8.20.  The representative of China  said that his country wished to echo the statement made by 
Mexico on behalf of the 121 co -sponsors of th e important proposal  contained  in document  
WT/DSB/W/609/Rev.18 . The urgency and necessity of restoring the Appellate Body could not be 
overstated . China wished to refer to its statements made at previous DSB meetings on this important 
matter . China also wished to  reiterate its firm support for a two -tier, independent and effective 
dispute settlement system . With regard to WTO reform, Members did not  disagree  on the need to WT/DSB/M/444  
- 20 - 
  reinforce the WTO's critical negotiating and monitoring functions . However, dismantling the 
Appellate Body and crippling the current dispute settlement system were not  an effective 
prescription . China asked why Members should  negotiate new rules i f the current trade rules could 
not be enforced . China also asked how the negotiating and monitoring functions could be genuinely 
reinforced i f the dispute settlement system was no longer capable to deal with  WTO-inconsistent 
measures . China noted that the United States had stated , at the present meeting and also at the 
29 July 2020 DSB meeting , that the WTO dispute settlement system continue d to function while the 
paralysis of the Appellate Body persisted . Unfortunately, t his statement r an counter  to reality . The 
paralysis of the Appellate Body ha d pushed the dispute settlement system to the brink of collapse . 
The risk of appeals into the void ha d exposed  every disputing party to a high level of uncertainty . 
Various means , such as non -appeal agreem ents, were merely damage control measures aimed at  
minimiz ing the uncertainty to some extent . However , such damage control measures were not 
without cost and m ight not work for all Members . For example, a right of appeal ha d to be 
involuntarily forfeited in order to reach a non -appeal agreement . Without meaningful second -tier 
review, a one -off ad hoc  panel would make  it far more difficult to maintain the quality of 
adjudications . The fragmentation of rule interpretation seem ed inevitable over time . As a result, the 
dispute settlement system would ultimately fail to provide security and predictability to the 
multilateral trading system  under Article 3.2 of the DSU . The current bitter experience with 
investor -state dispute settl ement in the investment law regime ha d clearly demonstrated that going 
down this path was a non -starter . In this regard, maintaining a two -tier, independent and binding 
dispute settlement system should remain the priority of the entire Membership . Members  had to find 
a lasting solution to the Appellate Body crisis . The informal "Walker process" on AB matters  had 
unique value and should be con tinued . Also, 23 WTO Members , including China , had recently 
established a Multi -Party Appeal Arbitration Arrangement (MPIA) under  Article 25 of the DSU . The 
MPIA sought  to preserve the appe llate rights of participating Members and to facilitate the positiv e 
resolution of disputes among them . With the successful composition of the pool of arbitrators, the 
MPIA was now ready to start. China encourag ed more Members  to join the MPIA and s tood ready to 
constructively engage with other Members on Appellate Body reform.  
8.21.  The representative of India said that his country wished to refer to its statements made at 
previous DSB meetings on this issue . Since 11  December  2019, the WTO no longer guarantee d 
access to a binding, two -tier, independent and impa rtial resolution of trade disputes . This ha d 
resulted in a clear breach of the WTO Agreements . India, therefore, request ed that all WTO Members 
resolve this matter and work on filling the outstanding vacancies as set out in Article 17.2 of the 
DSU. 
8.22.  The representative of Turkey  said that his country wished to  thank Mexico for placing this 
item on the Agenda  of the present meeting . As a cosponsor of th e proposal  contained  in document  
WT/DSB/W/609/Rev.18 , Turkey wished to reiterate its support for preserv ing the  two-tier character 
and the binding nature of the dispute settlement system . Turkey  did not see an alternative to a 
well-functioning Appellate Body . In this respect, Turkey wished to  refer to its statements made at 
previous DSB meetings on this matter . Turkey  recall ed the urgent need to start the AB selection 
processes in accordance with Article 17.2 of the DSU . Turkey believe d that as this impasse p ersisted , 
the predictability of the multilateral trading system w ould gradually diminish . Members had already 
seen certain  ramifications of this impasse . Turkey was ready to work constructively with all Members 
to break the current impasse and to engage in discussions with the Membership to commence the 
AB selection processes.  
8.23.  The representative of the European Union  said that his delegation noted that the United States 
had asserted that the Appellate Body ha d not followed the rules of the DSU . The EU w ished to 
reiterate that Members  should be having a forwa rd-looking discussion and should not continuously 
re-litigate their differences as to the reading of the current rules . The draft G eneral Council  decision 
presented by Amb.  Walker could have been the right basis for unblocking the appointments . 
However, it had not been accepted by the United States who had not made any proposal or 
counterproposals . The EU stood ready to continue a forward -looking discussion . On substance, the 
EU wished to refer to its previous statements on the respective issues . The EU's views were well 
known, but the EU would be happy to explain its position again as appropriate . The EU noted that 
the United States ha d also made some negative comments in relation to the MPIA . It was not clear 
on what basis the United States could  make such negative comments, in particular at a time whe n 
not a single arbitration award h ad been issued under the MPIA . The MPIA was a stopgap interim 
arrangement, not a means to reform the dispute settlement process . Pending a multilaterally agreed 
reform of the dispute settlement system, the participants in the MPIA had devised an interim WT/DSB/M/444  
- 21 - 
  arrangement based on the core features of appellate review pursuant to Article 17 of the DSU . These 
features ha d been agreed multilaterally by all WTO Members , includi ng the United States . In 
addition, the MPIA also included  a number of elements designed to enhance the procedural efficiency 
of appel late proceedings, in the specific context of appeal arbitration under Article 25 of the DSU.  
8.24.  The representative of Mexico , speaking  on behalf of the 121 co -sponsors of the joint proposal  
contained  in document WT/DSB/W/609/Rev.18 , regretted that for the thirty -fifth occasion, Members 
had still not been able to launch the AB selection processes and had thus continuously failed to fulfil 
their duty as Members of this Organization . The fact that a Member might have concerns about 
certain aspects of the functioning of the Appellate Body should not serve as a pretext to impair and 
disrupt its work as well as the work of the dispute settlement system . There was no legal justification 
for the current blockage of the AB selection processes, which was causing concrete nullification and 
impairment for many Members . As Article 17.2 of the DSU clearly stated : "[v]acancies shall be filled 
as they arise" . No discussion should prevent the Appellate Body from continuing to operate fully and 
Members had to comply with their obligation under the DSU to fill the AB vacancies . Mexico noted 
with deep concern that due to the continued failure to act a t the present meeting, the Appellate 
Body would continue to be unable to perform its functions, against the best interest of all Members . 
8.25.  The representative of Mexico  said that  her country wished to refer to its statements made at 
previous DSB meetings und er this Agenda item . Mexico expressed  regret that  there still was no 
consensus to launch the AB selection processes that would allow Members  to rely on a fully 
functioning dispute settlement system . As Mexico  had noted at the most recent DSB meetings, a ll 
ongoing disputes were being affected . This undermine d the right to appellate review of all Members . 
Mexico wished to  thank th e 121 Members that ha d co-sponsored this proposal . This was a clear 
demonstration of the Membership's determination t o have access to a functional dispute settlement 
system and to fulfil their obligation in conformity with Article 17.2 of the DSU . Mexico called on all 
Members that ha d not yet done so to support this proposal.  
8.26.  The Chairman thanked delegations for their statements . He said that in the past, the DSB 
would take note of the statements expressing the respective positions, which would be reflected in 
the minutes of this meeting . He said that this matter required a political engagement on the part of 
all WTO Members.  
8.27.  The DSB took note  of the statements.  
9  STATEMENT BY INDIA REGARDING THE COMPOSITION OF PANELS BY THE 
DIRECTOR -GENERAL IN ACCORDANCE WITH ARTICLE 8.7 OF THE DSU IN THE FOLLOWING 
DISPUTES: DS582 AND DS588  
9.1.  The representative of India, speaking unde r "Other Business",  said that his country wishe d to 
bring to the DSB's attention certain unfortunate developments regarding  panel composition in the 
following disputes : "India – Tariffs on ICT Goods (EU)" (DS582) and "India – Tariffs on ICT Goods 
(Chinese Taipei)" (DS588) . India believed that WTO dispute settlement expect ed disputing parties 
to work together at every stage, except insofar as their difference of opinion on the matter 's merits . 
India recall ed that parties' agree ment on panelists was an entrenched principle that was carried over 
from GATT practice , which  was aimed at securing the legitimacy of panels . Only when such 
agreement was not possible would the Director -General  be in a position to appoint suitable panelist s 
under  Article 8.7  of the  DSU. India consider ed it unfortunate that complaining Members in the 
aforementioned disputes expect ed India to either agree with their assertions and preferences or 
acquiesce to an aberrational and inapplicable trend of involving  the Director -General  in compos ing 
the Panels. India consider ed that as a respondent in th ese dispute s, India was entitled to engage in 
discuss ions with the respective complainants in order to reach  a mutually acceptable solution at the 
panel composition stage, especially considering that one complainant expressly acknowledge d 
India's cooperation in previous stages of the dispute and its commitment to working with the 
respective complainants . India d id not understand the undue hurry to have panelists appointed 
through the Director -General . Presumably , this hurry was due to the departure  of the 
Director -General from office on 3 1 August  2020. India note d that even if agreement s on appropriate 
panelists were not possible for some compelling reason, there w ould certainly  be an alternative 
arrangement to carry out the same function should  that happened.  WT/DSB/M/444  
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  9.2.  Further more, India underst ood that every WTO Member involved in a dispute ha d been 
traditionally entitled  to provide criteria to the WTO Secretariat , once a panel was established , on the 
basis of which the Secretariat would propose nominations for consideration by parties to the dispute 
under  Article 8.6  of the  DSU. India expressed regret at inform ing the DSB that this treatment , which 
was normally available  to every Member , had not been given to India in the  previously mentioned 
disputes . Against this backdrop, India wishe d that the Secretariat would fulfil its duties under 
Article  8.6 of the  DSU inst ead of delaying the matter and contributing to the complainants' choice of 
having the panels composed through the Director -General 's involvement . India consider ed that 
despite being mandated by the DSU to propose nominations, the Secretariat had  yet to  provide 
assistance  to India . In fact, the Secretariat ha d indicated that it would not provide nominations 
unless both disputing parties agree d to request such nominations from the Secretariat . This was 
unacceptable to India and contravene d the plain text of A rticle 8  of the  DSU. India urge d the 
respective Members to reconsider their decision . India would prefer to come to agreed outcome s on 
the nominations and panelists . India also urge d the respective complainants to positively consider a 
developing country respondent Member 's views in a spirit of good faith . India note d that in the 
absence of a functioning Appellate Body, the spirit of cooperation amongst disputing parties,  now 
more tha n ever , would go a long way in preserving dispute settlement practices that ha d been 
followed since GATT times and ha d been carried over to the WTO. Members should avoid  taking 
recourse to last resort safeguards as a first line of action.  
9.3.  The representativ e of the European Union  said that India's statement raise d very interesting 
legal and substantive issues . However, the EU asked  whether it was appropriate to have this 
discussion  at the present meeting . He noted that Rule 25 o f the Rules of Procedure for DSB meetings  
provide d that: "discussions on substantive issues under 'Other Business' shall be avoided" . That Rule 
also provide d that dele gations : "should avoid unduly long debates under 'Other Business'" . If India 
wished to have a l engthy  debate on substantive issues, it should have p laced this item on the Agenda 
of a DSB meeting . If it had not bee n not possible to do so for th e present  meeting, then India should 
have waited until the next DSB meeting . In line with Rule 25  of the Rules of Pro cedure for DSB 
meetings , the EU would  not engage in a long debate with India  on this matter  at the present meeting . 
The EU  simply wished to  briefly state for the record  that on the basis of Article 8.7 of the DSU, the 
complaining parties, in the cases referred to  by India,  were entitled to request the Director -General  
to compose the respective Panels. The two conditions provided for in Article 8.7 of the DSU  were 
met, namely : 20 days had passed from the establishment of Panels and no agreement reached  on 
panelists . The exercise of this right of the complaining parties was not conditional upon the 
Secretariat proposing first a slate of names pursuant to Article 8.6 of the DSU. It was clear that on 
the basis of  Article 8.7 of the DSU, the WTO Director -General had to determine the composition of 
Panels within 10 days from that request and this was what the WTO Director -General  would do. 
9.4.  The representative of Chinese Taipei  said that his delegation believe d that under Article 8.7 of 
the DSU, if there was no agreement on the panelists within 20 days after the date of the 
establishment of a panel , at the request of either party, the Director -General , in consultation  with 
the Chairperson of the DSB and the Chai rperson of the relevant council or committee , should 
determine the composition of the  panel by appointing the panelist s whom the Director -General  
consider ed the most appropriate . In Chinese T aipei's case, the Panel had been  established on 
29 July 2020. There had been  no agreement on the panelists within 20 days following  the 
establishment of the Panel. Therefore,  Chinese Taipei  had the right to request that the 
Director -General  compose the Panel. 
9.5.  The representative of India said that his country wished to note that it was not India's intention 
to have a substantive discussion  under "Other Business" . India merely wished  to register a point of 
view so that  the DSB could  take note  of the statement for any future discussions . India was also not 
seeking a decision on th is matter but only wishe d to have the right to present its view . India believed  
that its statement was well within the rule under  "Other Business ". India noted that detailed 
discussions, including of a substantive nature, ha d been carried out by other Members under "Other 
Business" in the past . For example, India recall ed that lengthy substantive discussions had taken  
place when discussing the "EC – Bananas III " dispute (DS27) at  the DSB meeting held o n 
18 November  1997, contained  in document WT/DSB/ M/39 dated 7 January  1998. India request ed 
that the DSB take note of India's statement  made at the present meeting . Moreover , India believed 
that its conduct d id not warrant  the aberrational trend developed in recent times for any reason 
whatsoever . India recognized  that requests  to the Director -General  could be acceptable in some 
instances , for example , when a respondent fail ed to provide its views on the criteria for the pa nelists 
or the nominations proposed by the Secretariat . However, that was not the case in the WT/DSB/M/444  
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  aforementioned disputes , since India ha d demonstrated flexibility and willingness in principle to 
accommodate the respective complainants' views . On the contrary,  India note d that one complainant 
had not even wait ed for the lapse of 20 days necessary  for an agreement on nominations proposed 
by the Secretariat before seeking the Director -General 's intervention, while another complainant had 
not initiate d the process  under Article 8.6 of the DSU for one and a half months before directly 
requesting  the Director -General 's intervention . India wishe d to proceed  on the basis of standard 
panel composition procedures , including the steps envisaged in Article 8.6  of the  DSU. India, once 
again , urged the respective complainants in the  mentioned  disputes to actively consider having 
agreed outcomes on the panel composition process es as was expected under  the DSU, and to 
consider that India s ought  to work on these aspects in a spirit of good faith with the respective 
complainants.  
9.6.  The DSB took note of the statements.  
10  STATEMENT BY THE RUSSIAN FEDERATION REGARDING ITS GENERAL CONCERNS 
ABOUT THE EU DECISION TO APPEAL THE PANEL REPORT IN DS494  
10.1.  The representative of the Russian Federation , speaking under "Other Business", said that the 
Panel in this dispute had found that various measures of the E uropean Union (EU) , including its 
so-called cost adjustment methodolog y and its anti-dumping duties applied in respect of a number 
of Russian exporters, were inconsistent with the EU 's WTO commitments . The Russian Federation 
expressed deep  disappoint ment at the EU 's decision to appeal the Panel Report in  this dispute  in 
light of  the current circumstances  related to the Appellate Body . The EU's appeal  was effectively 
sending th is dispute into the void . With the aim of t aking advantage of a situation where by this 
dispute w ould remain unresolved, one of the major economies had felt free to escape its international 
obligations by appealing the Panel Report to a non-functioning Appellate Body . She said that Brussels 
constantly  present ed itself as a "friend of the dispute settlement system ". However, misus ing the 
crisis created  by another  Member to avoid compl ying with its international obligations could not be 
considered either a positive contribution to the solution of such crisis or a friendly act in respect of 
the Membership or the system itself . In fact, this p laced the EU on the same side as the opponents 
of a proper ly functioning dispute settlement system . Should  such a step be taken against the EU in  
respect of  disputes in which  it prevail ed, the EU believe d (quot ing the Proposal for an EU Regulation 
Concerning th e Exercise of the EU's Rights for the Application and Enforcement of International Trade 
Rules) that : "where the responsible party fails to cooperate in good faith in the dispute settlement 
procedures, thereby preventing the injured party from completing s uch procedures, the possibility 
to resort to countermeasures in accordance with the requirements of general public international 
law necessarily revives ". As show n by its decision to appeal,  when EU measures were  found to be 
inconsistent with the EU's  WTO obligations, the EU fail ed to cooperate in good faith and prevent ed 
the injured party from completing such dispute settlement procedures . The EU might r efer to  the 
multi-party interim appeal arbitration arrangement as an excuse for its action . Russia wished to  note 
that it did not join this arrangement . Therefore, this alternative was not available to the parties to 
this dispute . Moreover, the reasons not to participat e in that arrangement  could  vary from Member 
to Member . However, the fact that a Memb er ha d not subscribed to a new arrangement  could not 
serve as an excuse to completely di sregard  existing means  and available methods of dispute 
settlement . It was not a reason to revert  to the "dark ages ". Russia expressed regret that it was left 
with no o ther option but to reserve its rights to take any action which could  be necessary to secure 
its interests and the interests of its companies that were subjected to unfair EU measures found to 
be WTO-inconsistent by the Panel.  
10.2.  The DSB took note of the statement.  
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